Certiorari to the Utah Court of Appeals Third District, Salt
Lake The Honorable Judith S. H. Atherton No. 071900184
Reyes, Att'y Gen., Karen Klucznik, Asst. Solic. Gen.,
Salt Lake City, for appellee
Fujino, Salt Lake City for appellant.
Justice Durham authored the opinion of the Court in which
Chief Justice Durrant, Justice Himonas, and Judge Kelly
recused himself, Justice Pearce does not participate herein;
District Court Judge Keith Kelly sat.
Michael Johnson was found guilty of murder for strangling a
woman in her apartment. Mr. Johnson appealed his conviction.
On appeal, the court of appeals identified an issue that was
not argued by the parties and ordered supplemental briefing,
ultimately reversing Mr. Johnson's conviction. We have
granted certiorari review to answer a single question:
whether the court of appeals correctly concluded that
exceptional circumstances merit review of an issue not
preserved in the trial court and not argued on appeal. We
hold that the exceptional circumstances exception to the
preservation rule does not apply here, and we reverse the
court of appeals and remand this case so that it may consider
the appellant's other unaddressed claims of error.
Michael Johnson was charged and tried for murder. At trial,
Mr. Johnson requested an instruction for the lesser offense
of homicide by assault. The trial court agreed and stated on
the record that it would use the homicide by assault
instruction submitted by Mr. Johnson.
The jury returned a guilty verdict on the murder charge, and
Mr. Johnson appealed his conviction to the court of appeals.
He argued that his conviction should be reversed because the
verdict form returned by the jury did not include an option
to find him guilty of the lesser offense of homicide by
assault and that the jury instruction on causation
was erroneous. State v. Johnson, 2014 UT App 161,
¶ 11 & n.5, 330 P.3d 743.
The court of appeals asked for supplemental briefing on an
issue that Mr. Johnson had not raised on appeal: whether the
homicide by assault jury instruction was erroneous.
Id. ¶¶ 12-13. After supplemental briefing,
the court of appeals reversed Mr. Johnson's conviction
based upon its conclusion that the homicide by assault
instruction was erroneous, id. ¶ 29, with each
judge on the three-member panel writing separately. The court
acknowledged that Mr. Johnson never preserved an objection to
the instruction and that Mr. Johnson likely invited the error
by submitting the instruction to the court. Id.
¶ 14. The court of appeals decided, however, that the
exceptional circumstances exception to the preservation rule
permitted the court to examine the unpreserved and likely
invited error. Id. ¶¶ 14-19. A majority of
the panel reached this conclusion by determining that our
decision in State v. Robison, 2006 UT 65, 147 P.3d
448, expanded the doctrine of exceptional circumstances.
Johnson, 2014 UT App 161, ¶¶ 16-19, 30-31.
This court granted a petition for certiorari review of the
court of appeals' opinion. We agreed to answer
"[w]hether the majority of the panel of the court of
appeals erred in its application of the exceptional
circumstances doctrine to a case in which it acknowledged the
error may have been invited and in which Respondent did not
argue ineffective assistance of counsel."
We review the court of appeals' application of the
preservation rule for correctness. State v. McNeil,
2016 UT 3, ¶ 14, 365 P.3d 699. "This standard of
review allows us to apply the [appellate] doctrines at issue
here as if we were the first appellate court to consider
DIFFERENCE BETWEEN FAILURE TO PRESERVE AN ISSUE IN THE TRIAL
COURT AND WAIVING AN ISSUE ON APPEAL
The court of appeals erred when it determined that State
v. Robison, 2006 UT 65, 147 P.3d 448, extended the
application of the exceptional circumstances exception to
preservation. Given the ambiguity in our precedent, we
undertake clarification of when an appellate court may reach
an issue that was not preserved in the trial court, and when
it may reach an issue sua sponte that was waived by
the parties on appeal. We first discuss the historical
background against which our rules of preservation and waiver
developed, and then we address preservation and waiver and
their respective exceptions. Finally, we apply these
standards to the case before us.
Writ of Error and Appeal in Equity
Our appellate system has developed along the adversarial
model, which is founded on the premise that parties are in
the best position to select and argue the issues most
advantageous to themselves, while allowing an impartial
tribunal to determine the merits of those arguments. See
Patterson v. Patterson, 2011 UT 68, ¶ 16, 266 P.3d
828 ("Under our adversary system, the responsibility for
detecting error is on the party asserting it, not on the
court."); State v. Larrabee, 2013 UT 70, ¶
15, 321 P.3d 1136. This system preserves judicial economy and
fairness between the parties. Patterson, 2011 UT 68,
Notwithstanding the dominance of this model, our system of
appeals has roots in two separate and distinct methods of
review available under the old English court system: the writ
of error and the appeal in equity. The writ of error was used
to review an order or judgment of an English court of law; an
appeal in equity was used to review a ruling in a court of
equity. Barry A. Miller, Sua Sponte Appellate Rulings:
When Courts Deprive Litigants of an Opportunity to Be
Heard, 39 San Diego L. Rev. 1253, 1263 (2002). Writs of
error were strictly limited to reviewing orders and judgments
made by the court of law on issues raised in that court.
Id. Conversely, "[a]ppellate courts in equity
were free to consider any issue de novo" and
"developed flexible procedures to address the needs of
individual cases." Id.
While American courts have developed an appellate system with
strict rules governing what issues an appellate court will
address, thus more closely resembling the writ-of-error
model, both the writ of error and the appeal in equity were
consolidated into one set of appellate courts. See
id. at 1264 (noting that the writ of error and appeal in
equity were combined in U.S. appellate courts, with
"[o]ne set of appellate courts administer[ing]
both"); Goldberg v. Jay Timmons & Assocs.,
896 P.2d 1241, 1242 (Utah Ct. App. 1995) ("Historically,
parties could bring actions in a court of law or a court of
equity. For procedural purposes, the distinction between law
and equity has been abolished and only 'one form of
action . . . known as civil action, ' remains."
(alteration in original) (citations omitted)); cf.
Christensen & Jensen, P.C. v. Barrett & Daines,
2008 UT 64, ¶ 20, 194 P.3d 931 (establishing standard of
review for cases in equity as opposed to cases at law). This
has created a system that, at times, appears to contain
inherent conflicts and has given rise to a certain tension,
if not murkiness, regarding preservation, waiver, and when a
court may raise an issue sua sponte.
Our court's history in this regard is not unique.
Appellate judges across the country have wrestled with the
correct balance between law and equity and the scope of
review on appeal. See Miller, supra ¶
9 at 1271 (noting that despite a party's duty to raise
issues, appellate judges raise issues sua sponte
because they "also see their role as doing justice in
the tradition of equity"). For instance, in one case the
late Justice Antonin Scalia wrote, "[t]he rule that
points not argued will not be considered is more than just a
prudential rule of convenience; its observance, at least in
the vast majority of cases, distinguishes our adversary
system of justice from the inquisitorial one."
United States v. Burke, 504 U.S. 229, 246 (1992)
(Scalia, J, concurring) Yet elsewhere he stated that
"the refusal to consider arguments not raised is a sound
prudential practice, rather than a statutory or
constitutional mandate, and there are times when prudence
dictates the contrary" Davis v United States,
512 U.S. 452, 464 (1994) (Scalia, J, concurring).
Despite this historical tension between the two systems, and
our general reliance on strict rules governing preservation
and waiver, we have maintained that our waiver and
preservation requirements are "self-imposed and [are]
therefore [doctrines] of prudence rather than
jurisdiction." Patterson, 2011 UT 68, ¶
13. "Consequently, we exercise wide discretion when
deciding whether to entertain or reject" issues that are
unpreserved at trial or waived on appeal. Id.;
see also Salt Lake City v. Carrera, 2015 UT 73,
¶ 17, 358 P.3d 1067 ("[W]e . . . retain discretion
over whether to consider issues not raised by the
parties."); Utah Dep't of Transp. v. Admiral
Beverage Corp., 2011 UT 62, ¶ 8, 275 P.3d 208
(raising the validity of precedent sua sponte). We
retain this discretion to "balance the need for
procedural regularity with the demands of fairness."
State v. Holgate, 2000 UT 74, ¶ 13, 10 P.3d 346
Regardless of whether the practice of appellate courts in
raising issues sua sponte that have not been raised in the
trial court is analyzed under the law versus equity model or
the adversarial versus inquisitorial system model, there is
widespread agreement that appellate courts have the authority
to engage in this practice.
Blumberg Assocs. Worldwide, Inc. v. Brown & Brown of
Connecticut, 84 A.3d 840, 859 (Conn. 2014).
In an effort to serve the policy considerations of judicial
economy and fairness to the parties, to preserve the
adversarial model, and to provide clear guidelines to
litigants, we have limited our discretion by creating
exceptions to the general preservation rule.
Patterson, 2011 UT 68, ¶ 13 ("We have
exercised this discretion to recognize some limited
exceptions to our general preservation rule."). However,
there has arisen some confusion concerning our preservation
exceptions, as is evident from the three opinions in the
court of appeals in this case. Also, we have rarely touched
on when it is appropriate for an appellate court to reach an
issue sua sponte that has been waived on appeal. We
therefore use this opportunity to clarify our preservation
and waiver doctrines and to outline when a court may reach an
issue sua sponte. We begin by discussing the
terminology of preservation and waiver.
Definitions of Preservation and Waiver on Appeal
Under our adversarial system, the parties have the duty to
identify legal issues and bring arguments before an impartial
tribunal to adjudicate their respective rights and
obligations. This duty of the parties exists in both the
trial court and in the appellate court. If the parties fail
to raise an issue in either the trial or appellate court,
they risk losing the opportunity to have the court address
When a party fails to raise and argue an issue in the trial
court, it has failed to preserve the issue, and an appellate
court will not typically reach that issue absent a valid
exception to preservation. Patterson, 2011 UT 68,
¶ 12 (stating that appellate courts "generally will
not consider an issue unless it has been preserved for
appeal"). "An issue is preserved for appeal when it
has been 'presented to the district court in such a way
that the court has an opportunity to rule on
[it].'" Id. (alteration in original)
(citation omitted). "To provide the court with this
opportunity, 'the issue must be specifically raised [by
the party asserting error], in a timely manner, and must be
supported by evidence and relevant legal
authority.'" State ex rel. D.B., 2012 UT
65, ¶ 17, 289 P.3d 459 (alteration in original); see
also O'Dea v. Olea, 2009 UT 46, ¶ 18, 217 P.3d
704. (To preserve an issue: "(1) the issue must be
raised in a timely fashion; (2) the issue must be
specifically raised; and (3) a party must introduce
supporting evidence or relevant legal authority."
When a party fails to raise and argue an issue on appeal, or
raises it for the first time in a reply brief, that issue is
waived and will typically not be addressed by the appellate
court. Allen v. Friel, 2008 UT 56,
¶¶ 7-8, 194 P.3d 903 (appellants failing to raise
an issue, or raising an issue for the first time in their
reply brief, have waived the issue on appeal);
Robison, 2006 UT 65, ¶ 22 (agreeing with the
Illinois Supreme Court that "[the court of appeals]
should not normally search the record for unargued and
unbriefed reasons to reverse a [district] court
judgment" (alterations in original) (citation omitted)).
Preservation and waiver are not mutually exclusive. There are
at least four possible interactions between these two
requirements. First, a party may have preserved an issue in
the trial court and properly raised it on appeal. In this
instance, the appellate court will typically address the
issue. Second, a party may have preserved an issue, but
failed to properly raise it on appeal, thus waiving it.
Third, a party may have failed to preserve an issue in the
trial court, but seeks to raise it on appeal. In this
instance, the party must argue an exception to preservation.
Finally, a party may have failed to preserve an issue in the
trial court, and failed to raise and argue the issue on
appeal. In any of the second through fourth
examples, this court will not typically reach the issue
absent some recognized exception.
EXCEPTIONS TO PRESERVATION
As mentioned above, parties are required to raise and argue
an issue in the trial court "in such a way that the
court has an opportunity to rule on [it]." Patterson
v. Patterson, 2011 UT 68, ¶ 12, 266 P.3d 828
(alteration in original) (citation omitted). A failure to
preserve an issue in the trial court generally precludes a
party from arguing that issue in an appellate court, absent a
valid exception. See id.
This court has recognized three distinct exceptions to
preservation: plain error, ineffective assistance of counsel,
and exceptional circumstances. When an issue is not preserved
in the trial court, but a party seeks to raise it on appeal,
the party must establish the applicability of one of these
exceptions to persuade an appellate court to reach that
"To demonstrate plain error, a defendant must establish
that '(i) [a]n error exists; (ii) the error should have
been obvious to the trial court; and (iii) the error is
harmful . . . .'" State v. Holgate, 2000 UT
74, ¶ 13, 10 P.3d 346 (alteration in original) (citation
omitted). "If any one of these requirements is not met,
plain error is not established." State v. Dean,
2004 UT 63, ¶ 15, 95 P.3d 276 (citation omitted).
For an error to be obvious to the trial court, the party
arguing for the exception to preservation must "show
that the law governing the error was clear, "
id. ¶ 16, or "plainly settled, "
id. ¶ 18, "at the time the alleged error
was made, " id. ¶ 16. For it to be
harmful, the error must be shown to have been "of such a
magnitude that there is a reasonable likelihood of a more
favorable outcome for the defendant." Id.
¶ 22 (citations omitted). This test is "equivalent
to the prejudice test applied in assessing claims of
ineffective assistance of counsel." Id. In
determining if the harm was prejudicial, we determine whether
there is a "reasonable probability" that,
"'but for' the alleged error, " the outcome
in the case would have been different. Id.
Ineffective Assistance of Counsel
Ineffective assistance of counsel is sometimes characterized
as an exception to preservation. See State v.
Griffin, 2016 UT 33, ¶ 22, 384 P.3d 186
("[I]neffective assistance of counsel claims [are] a
recognized exception to our preservation
requirements."); see also State v. Low, 2008 UT
58, ¶ 19, 192 P.3d 867. But this exception differs from
the other preservation exceptions. Under plain error or
exceptional circumstances, the court may reach the
substantive claim that was not preserved in the
trial court. Ineffective assistance of counsel, however, is a
stand-alone constitutional claim attacking the performance of
a criminal defendant's counsel. See U.S. Const.
amend. VI ("In all criminal prosecutions, the accused
shall enjoy the right . . . to have the Assistance of Counsel
for his defence."); see also Strickland v.
Washington, 466 U.S. 668, 686 (1984) (stating that the
Sixth Amendment "right to counsel is the right to the
effective assistance of counsel" (citation omitted))
superseded on other grounds by Antiterrorism and
Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110
Stat. 1214. While such a claim necessarily requires the court
to look at the substantive issue the defendant argues his
counsel should have raised, and whether the substantive issue
had any merit, the substantive issue is only viewed through
the lens of counsel's performance. Archuleta v.
Galetka, 2011 UT 73, ¶ 32, 267 P.3d 232
(ineffective assistance of counsel is an entirely new claim
that does not "revive the underlying substantive
claim"); State v. Hansen, 2002 UT 114, ¶
21 n.2, 61 P.3d 1062 ("[P]art[ies] may . . . assert
ineffective assistance of counsel in failing to preserve [an]
Ineffective assistance of counsel is thought of as an
exception to preservation because a claim for ineffective
assistance could not have been raised in the trial court; it
does not mature until after counsel makes an error. Thus,
while it is not a typical exception to preservation, it
allows criminal defendants to attack their counsel's
failure to effectively raise an issue below that would have
resulted in a different outcome. See State v. Roth,
2001 UT 103, ¶¶ 5, 11, 37 P.3d 1099. This exception
applies only in criminal cases, because criminal defendants
are the only parties constitutionally guaranteed the right to
effective assistance of counsel.
Utah appellate courts have characterized the exceptional
circumstances exception as "ill-defined, " see
Holgate, 2000 UT 74, ¶ 12 (citation omitted), and
as an "[im]precise doctrine" that cannot "be
analyzed in terms of fixed elements, " State v.
Irwin, 924 P.2d 5, 8 (Utah Ct. App. 1996). This is
perhaps the source of the confusion generated by State v.
Robison, 2006 UT 65, 147 P.3d 448, in the court of
appeals. We undertake ...